Discussion of current legal issues

We want to engage in the fantasy that there is equal justice under law. But as demonstrated by criminologist Nicole Gonzalez Van Cleve in her book “Crook County: Racism and Injustice in America’s Largest Criminal Court,” racism exists in the criminal system. Assistant Professor Van Cleve presents a searing picture of systemic and deeply entrenched racism in the criminal system, even among defense attorneys not to mention judges and prosecutors.

I have in prior posts here tried to explain how racism is destroying the criminal system. I wrote about it extensively in a brief challenging the constitutionality of felon disenfranchisement which has its origins in the southern slave codes. I have written here how some people make the incredible assertion that racism no longer exists. I have written here how Donald Trump has no understanding of how racism creates mass incarceration and many other problems in the criminal system. In fact, I have even explained here how we are racist in ways we do not even realize.

Prosecutors have virtually unchecked power in the plea bargain process. It’s the power to take away freedom, destroy livelihoods, and tear families apart. Ultimately, it’s the power to devastate low-income minority communities already suffering from aggressive and discriminatory law enforcement tactics. For instance, in the film “Milwaukee 53206,” Milwaukee’s ZIP code 53206 is examined since it has the national spot light for having the highest incarceration rate in the country. The film illuminates the story of people from across the United States who live with the daily effects of unfair and excessively racially-biased jail sentences have on individuals and families.

Now comes a new study which shows how racism creeps into the plea bargaining process. Now a new study from Carlos Berdejo of Loyola Law School demonstrates for the first time that there are significant racial disparities in the plea deals that white and black people receive on misdemeanor charges—with black people facing more severe punishment.

Berdejo analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were more than 25 percent more likely to have charges reduced than black people who also had no criminal history.This suggests, as Berdejo concludes in his report, that prosecutors use race to judge whether a person is likely to recidivate when deciding what plea to offer.

Prior studies have found racial disparities in the plea bargaining process. The Berdejo study differs, however, in that it analyzes a detailed statewide data set of the entire life of criminal cases, from charging to sentencing, making it more reliable and expansive.​If there are racial disparities in pleas in misdemeanor cases that lead to worse punishment of black people, it means a significant proportion of our criminal justice system is meting out punishment in a racially-biased manner.

A recent Associated Press story on risk assessments, performed to determine the likelihood that someone involved in the criminal justice system will reoffend, contains several common misunderstandings. By taking a closer look at a few of these misconceptions, we hope to clarify some major points about risk assessment overall.Misconception 1: Low Risk = No RiskA common misconception is that people deemed to be at a low risk of reoffending have no risk of doing so. The AP report highlights stories of three individuals assessed as low risk who were ultimately rearrested for committing violent crimes. One story involved Milton Thomas, described by the AP as having been “in and out of Arkansas prisons since 2008 for nonviolent crimes, including check fraud.” Thomas told the reporters he had been evaluated low risk by the state of Arkansas.Thomas is currently awaiting trial for the alleged sexual assault of a 70-year-old woman.Assuming that Thomas actually was assessed as low risk (although the article seems to rely only on Thomas’s word only), it’s important to note that low risk does not mean no risk. In fact, we know with certainty that for every group of low-risk individuals, some portion will go on to reoffend, albeit at a significantly lower rate than individuals in moderate- and high-risk groups. Risk assessments are absolutely, statistically better at determining risk than the old ways of doing things (e.g., basing decision on a “gut instinct”), which were often less useful than flipping a coin.When risk assessments are performed on individuals, they really tell us what risk group someone belongs to, rather than their individual risk of re-offense.Misconception 2: All Assessments Are Created (or Conducted) EquallyThe AP story reports that “an Arkansas consultant said a majority of male parolees and probationers were classified as low risk by the state’s Department of Community Correction but 46 percent were rearrested within 18 months.”Another common misconception is that all assessments are of equal quality and efficacy and are conducted with equal skill. If the AP story is correct and 46 percent of these low-risk individuals were rearrested, it is almost certain that the risk assessment tool is being used incorrectly or has not been validated on the population to which it is being applied. Or administrators may simply have set cut-off scores that are unlikely to create any meaningful distinction between low-risk and high-risk groups. There are many examples of states and jurisdictions where risk assessments are being used properly, are properly validated, and where low-risk groups have recidivism rates of 5 percent or less.The AP story also states:…before Thomas was released the parole board assessed him as a high risk to commit more crimes. But a second risk assessment, conducted by the state’s community supervision agency, found him to be a low risk, Thomas told the AP. Thomas said he has no recollection of answering questions from the lengthy survey.Again, the story gets information directly from Thomas, but assuming the information is true, it seems likely the risk assessment was not conducted appropriately.It’s important to note, too, that some assessments don’t measure general risk; rather, they measure propensity for specific types of behavior (domestic violence, for example). Because we don’t know much about the assessments Thomas underwent, it’s difficult to explain or verify what actually happened. Understanding that not all assessments are created (or conducted) equally, though, is crucial to understanding risk assessment overall.Misconception 3: Risk Assessments Prevent CrimeAnother frequent misconception is that risk assessments themselves prevent crime. The AP story identifies another extreme case in which a crime occurred despite the use of risk assessments, and they seem to suggest that risk assessments are somehow meant to prevent crime.Had Vann scored higher on the Static-99R [a risk assessment], Texas would have sent postcards to the community where he was living—if he was living in Texas. But Vann moved to Indiana after his release.About one year later, 19-year-old Afrika Hardy was found dead in a Motel 6 bathtub 20 miles southeast of Chicago.Risk assessments by themselves do not prevent crime. And it’s a mistake to suggest not only that flawed risk assessments lead directly to tragic crimes, but also that sending postcards to a community—or any specific intervention—can directly prevent such crimes.Misconception 4: Risk Assessments Are Responsible for Bad DataIt’s important to know that risk assessments are only as effective as the data being used to develop them. The AP story refers to a Florida teen who completed a risk-assessment questionnaire (the PACT) and was deemed low risk to commit another crime. One mitigating factor was the teen’s self-reported “good group of friends,” the story reads. But when a prosecutor took a closer look, she determined this group of friends had “attempted a drive-by shooting of [the teen’s] house because they said he owed them money.” The story continues:The assessment “is completely flawed,” Schneider [the prosecutor] said in court. “They were obviously depending just on the information this young man was providing himself”…The case is a perfect example of “garbage in, garbage out,” Schneider said in an interview. “I continue to see where the PACT does not reflect the reality.”Schneider is absolutely correct in her “garbage in, garbage out” judgment. Yet, this doesn’t indicate that risk assessments themselves are flawed but that they can be fed bad data. Most structured assessments require the assessor to verify information in available records, including criminal history, disciplinary records from prison, assigned prison programming, past supervision, etc.When jurisdictions are following best practices, bad data should rarely find their way into an assessment leaving us with increased confidence in the outcomes of these tools.What The Story Gets RightDespite containing several common misconceptions, the AP story still got a few things right. For instance, Adam Gelb, director of The Pew Charitable Trust’s Public Safety Performance Project, said:“States and localities and all the jurisdictions that are working on risk assessment right now, they’re in different places with respect to their ability to implement a good risk assessment. But it’s absolutely critical that they do.”He couldn’t be more correct. Not every jurisdiction that uses risk assessment uses it perfectly, but it’s crucial that every jurisdiction work toward that end. U.S. Rep. Bobby Scott (D-VA) told the AP:“I think you ought to have some assessment and do the best you can and keep updating it based on the research. But you ought not be afraid of a system that’s working on average because of one anecdote.”There will always be instances in which an individual judged to be low risk goes on to commit another crime—as mentioned above, we know this will be the case. This doesn’t invalidate risk assessment in general, though, which, as Rep. Scott says, are crucial components in a triaging system that does much good, though there continues to be productive discussion about how and where risk assessments can be best used.Solomon Graves, the administrative services manager of the Arkansas Parole Board (not, as the report claims, a member of the state parole board), told the AP: “Over time the tools will become more dependable. ‘We’re never going to have a 100-percent predictive tool,’ he said. ‘We’ll never be there.’”This is absolutely true: No tool will ever be 100 percent accurate. But Graves makes an important point—that continuing to improve assessments will only make them, and the system overall, better.SOURCE: https://csgjusticecenter.org/reentry/posts/risk-assessment-what-you-need-to-know/March 3, 2015 By: CSG Justice Center Staff ​

In 1513 Albrecht Dürer etched the brilliant “Ritter, Tod, und Teufel” or Knight, Death and the Devil called simply the Reuter (Rider) by Dürer. Riding steadfastly through a dark Nordic gorge, Dürer's knight rides past Death on a Pale Horse, who holds out an hourglass as a reminder of life's brevity, and is followed closely behind by a pig-snouted Devil. The foxtail speared on the knight's lance and kept behind him stands for the knight’s strength to fight off lies, while the dog running alongside represents veracity and loyalty. As the embodiment of moral virtue, the rider—modeled on the tradition of heroic equestrian portraits with which Dürer was familiar from Italy—is undistracted and true to his mission. The rider moves through the scene ignoring or looking away from the creatures lurking around him. He appears to be almost contemptuous of the threats, and is often seen to be a symbol of courage. The Rider has the courage to be alone and independent.

Like the Knight, our Founding Fathers had the courage to leave the protection of England and form a new independent nation. Like Dürer, they valued independence and the right to be free: the right to be let alone. The Founders valued the right to be alone so much that they incorporated this fundamental right into the Constitution.The Supreme Court has labeled "fundamental" those rights which are "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Although the precise scope of this definition has never been determined, see Adamson v. California, 332 U.S. 46, 53-55 (1947), it is certain that some rights not explicitly named in the Constitution are nonetheless protected. See, e.g., Roe v. Wade, 410 U.S. 113 (1973).

In 1927 Chief Justice William Taft wrote in Olmstead v. United States that the government did not violate the Fourth Amendment to the Constitution by wiretapping a person’s telephone calls. Fortunately, there was a far greater intellect on the Supreme Court at the time by the name of Justice Louis Brandeis. He wrote an influential dissent that was the foundation for future court decisions. Repudiating the majority’s cramped textual analysis, Brandeis made a plea for what is now often referred to as “living constitutionalism,” explaining: “Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.” The proper methodology for construing the Fourth Amendment, urged Brandeis, was not an approach of “unduly literal construction,” but rather one that reasoned by analogy and sought to effect the underlying general purpose of the Amendment. The proper analogy for wiretapping, argued Brandeis, was the opening of a sealed letter in the mail, a practice that the Court had ruled unconstitutional.

Looking backward, Brandeis observed that at the time of the adoption of the Fourth Amendment, “‘the form that evil had theretofore taken,’ had been necessarily simple.” Seizures took place “by breaking and entry.” But more modern times gave the government “[s]ubtler and more far-reaching means of invading privacy. . . .” And electronic eavesdropping was only the beginning, warned Brandeis: “The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping.” Brandeis asked, rhetorically, “Can it be that the Constitution affords no protection against such invasions of individual security?”

Brandeis attacked the proposition that the government had the power to wiretap phones without warrant, arguing that there is no difference between listening to a phone call and reading a sealed letter. Brandeis argued that the Founders had “conferred against the government, the right to be let alone – the most comprehensive of rights and the right most favored by civilized men.” Justice Brandeis’ words echoed the dissent in the court below written by Judge Frank A. Rudkin. If “ills” such as state-sanctioned illegal wiretapping were constitutionally permissible, Rudkin proclaimed dramatically, “our forefathers signally failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.” The 1967 Katz v. U.S. case overturned the Olmstead ruling, holding that warrants were in fact required to wiretap payphones, with Brandeis’s dissent held as a primary influence. Its description of the reasonable expectation of privacy citizens have has been enshrined in law and constitutional interpretation, and has implications for a range of issues, from abortion rights to the freedom of the press.

Today, that provision’s protection against “unreasonable searches and seizures” provides a vital check on executive power to spy on us without a warrant. From bugging civil rights activists in the to examining individuals’ internet activity under the USA Patriot Act, the executive branch has repeatedly tried to extend the boundaries of its power and shrink our perimeter of fundamental right to privacy. We must be as Dürer's knight and have the courage to ride against these attacks against our fundamental right to be let alone.

According to Professor Alice Ristroph, Brooklyn Law School; Visiting Professor, Harvard Law School police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. Suspicion plays a critical and familiar role in authorizing seizures, but less attention has been given to the equally important concepts of resistance and compliance.

Demands for compliance with officers and condemnations of resistance run throughout constitutional doctrine. Courts have authorized police to meet resistance with violence. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) protected elsewhere in American law.

The probable cause is a standard so frequently and easily satisfied that the police could not possibly make a stop or arrest every time they have probable cause to do so. Instead, police have discretion to choose which instances of probable cause they will pursue, and in any given case, the fact of probable cause legitimates but does not necessarily determine or motivate the police action. The suspected violation can be a mere pretext for a stop designed to investigate the possibility of other crimes, crimes about which the officer has no legally cognizable suspicion at all. Officers regularly use traffic stops to look for evidence of drug trafficking, for example. Additionally, a seizure’s reasonableness is not dependent on the need to prosecute the suspected offense. Nor does reasonableness turn on an accurate understanding of the underlying substantive criminal law; an officer who mistakenly (but reasonably) believes that it is illegal to drive with only one brake light may stop a motorist on that ground. In short, the legality of the initial decision to make a seizure turns on one criterion—objectively reasonable grounds to suspect the person—and is decidedly not an all-things considered reasonableness inquiry.

Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire new proposals to reduce and redistribute those risks. Instead of condemning all resistance, constitutional doctrine could and should protect certain forms of non-violent resistance both in police encounters and in later court proceedings. Embracing resistance could help constrain police authority and mitigate racial disparities in criminal justice, and surprisingly enough, it may yet reduce violence.

Recent incidents of police violence are the products of deeply embedded constitutional choices—constitutive choices that shape the core political narratives of the nation. Rethinking those choices may prove even more difficult though also more important, than convicting a police officer for killing a suspect.

Less than a week after his inauguration, President Trump signed Executive Order No. 13,768 (“Order”), threatening to “crackdown on sanctuary cities that refuse to comply with federal law and that harbor criminal aliens” by cutting off federal grant money.[1] This article examines the current political and legal landscape affecting sanctuary cities and the policies that define the “sanctuary city” designation.[2]

What Is A “Sanctuary City”?

There is no single, legal definition of a “sanctuary city”; rather, the designation refers generally to cities and counties that have policies—whether formally or informally adopted—that are intended to further public safety by mitigating against any deterrent effects that immigration status might have on residents’ cooperation with local law enforcement officials and by distinguishing between local police and federal immigration officials. Studies that inform sanctuary policies indicate that victims of and witnesses to crimes are less likely to come forward to report and assist with the investigation and prosecution of crimes if they fear deportation as a possible result.[3] Despite some variation, sanctuary cities share the common policy objective: to build community trust in order to “promote public safety and confidence in local law enforcement.”

What Are Sanctuary Policies?Sanctuary policies differ across jurisdictions to accommodate local needs and priorities. Some have written policies that expressly prohibit police from inquiring about immigration status or direct local law enforcement not to comply with civil detainer requests by the U.S. Immigration and Customs Enforcement (“ICE”) to hold noncitizens for up to 48 hours to provide ICE agents extra time to take them into federal custody for deportation purposes. Others identify as sanctuary cities but have no written policies. Florida’s Miami-Dade County’s policy, until recently, was to refuse detainer requests except where the suspect had been charged with a non-bondable offense or had previously been convicted of a violent felony. Meanwhile, California’s Santa Clara County refuses to honor all detainer requests.

Several Massachusetts communities have sanctuary policies that limit local police cooperation with ICE, including Arlington, Boston, Cambridge, Chelsea, Holyoke, Lawrence, Newton, Northampton, and Somerville. Chelsea declared itself a sanctuary city in June 2007, adopting a policy that “immigration status (or lack thereof) … is not and shall not be a matter of local police concern or subsequent enforcement action by the [Chelsea Police Department] unless there exists through reliable and credible information a potential threat to public safety and/or national security.”[4] The policy only governs civil immigration matters and does not prohibit Chelsea Police from assisting with criminal matters. Lawrence adopted its Trust Ordinance in August 2015 “to increase public confidence in Lawrence Law Enforcement by providing guidelines associated with federal immigration enforcement, arrests, and detentions.”[5] Pursuant to the Ordinance, Lawrence police will not detain an individual based solely on an immigration hold or administrative warrant—or absent a warrant signed by a judge and based on probable cause—but will allow ICE officers with criminal warrants to use their facilities.

Since Trump’s election, more Massachusetts communities have galvanized to consider “sanctuary city” status. The Massachusetts Legislature also is considering a state-wide sanctuary policy, the Safe Communities Act, which would prohibit, inter alia, the use of state and local law enforcement resources or the Massachusetts Registry of Motor Vehicles record-keeping system for immigration enforcement purposes, and the arrest or detention of individuals solely on the basis of civil detainer requests or administrative warrants.[6] Police would not be prevented from pursuing immigrants who commit crimes subject to applicable federal laws and constitutional standards. Because sanctuary policies have broad support across the Commonwealth, two exceptions have attracted disproportionate press attention: in January 2017,the Republican sheriffs of Bristol and Plymouth County each signed agreements with ICE to deputize their correctional officers to detain individuals for immigration violations under Section 287(g) of the Immigration and Nationality Act.

The OrderOn January 25, 2017, President Trump signed the Order entitled “Enhancing Public Safety in the Interior of the United States.” By its plain language, the Order threatens “all Federal grant money” received by “sanctuary jurisdictions.” The Order includes several internally inconsistent and ambiguous definitions of sanctuary jurisdictions. Section 1 defines “sanctuary jurisdictions” as those that “willfully violate Federal law in an attempt to shield aliens from removal.” Section 9(a) defines the term more broadly as jurisdictions that “willfully refuse to comply with 8 U.S.C. § 1373” (“§ 1373”), which states that “a Federal, State, or local government entity or official may not prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the [INS] information regarding the citizenships or immigration status, lawful or unlawful, of any individual,” “or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Section 9(b) orders a retroactive identification of sanctuary jurisdictions based on a list to be publicized weekly including “any jurisdiction that ignored or otherwise failed to honor any detainers.” The Order also gives the Secretary of the Department of Homeland Security (“DHS”) unfettered “authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.”

The impact of the Order was felt immediately nationwide, with reports of decreased utilization of police, health, and social services by immigrant communities. And cities that had enacted sanctuary policies in effort to address the very fear and community distrust the Order has revived are now faced with deciding between prioritizing community safety or abandoning their sanctuary policies to avoid potentially losing critical federal funding. In letters dated April 21, 2017 sent to nine jurisdictions, the Department of Justice (“DOJ”) demanded proof of compliance with § 1373, coupled with the threat of terminating certain grants. Confronted with the Order, some jurisdictions, including Miami-Dade County, Florida and Dayton, Ohio rescinded their sanctuary policies,[7] and other cities like Quincy, Massachusetts, have declined to adopt a proposed policy. Yet other communities chose to fight back, declaring that challenging the Order is “just as much about protecting residents as it is about protecting federal resources.”

Legal Challenges to the OrderOn January 31, 2017, San Francisco filed the first lawsuit challenging the constitutionality of Section 9(a) of the Order, which states: “jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary [of Homeland Security].” Other suits quickly followed by Santa Clara County and Richmond in California; Chelsea and Lawrence, Massachusetts; and Seattle, Washington.[8] Santa Clara, consistent with its long-standing position that it does not comply with § 1373, asserted only constitutional arguments, but the remaining jurisdictions sought declarations they complied with § 1373 and therefore were not “sanctuary jurisdictions” subject to the Section 9(a) sanctions.

These cases assert the following constitutional challenges to the Order:· violation of the separation of powers doctrine (legislates a penalty and imposes new conditions on federal grants that only Congress can authorize and impermissibly refuses to spend funds already appropriated by Congress);· void for vagueness under the Fifth Amendment (fails to specify the prohibited conduct that would subject the local jurisdiction to defunding, includes no guidance on what constitutes a “sanctuary jurisdiction” subject to penalties, and has “expansive standardless language” open to arbitrary and discriminatory enforcement);· violation of procedural due process under the Fifth Amendment (jeopardizes local jurisdictions’ entitlement to money appropriated by Congress without administrative or judicial procedure);· violation of the spending clause of the Tenth Amendment (imposes, without notice, vague conditions after funds have already been accepted, with no nexus between the federal funds threatened and the Order’s purpose, and uses coercive financial inducements); and· violation of the principles offederalism and state sovereignty under the Tenth Amendment (compels local jurisdictions to administer or enforce federal immigration policies and programs through coercion, and may subject cities to Fourth Amendment liability; imposes a blanket restriction on local policymaking discretion regarding how to treat immigration status of residents and a specific restriction on the regulation of law enforcement priorities and policies to address the best interest of residents).[9]

On April 25, 2017, Judge William H. Orrick III of the Northern District of California ordered a nationwide preliminary injunction against enforcement of the Order’s defunding provision in the Santa Clara and San Francisco cases. Judge Orrick rejected the DOJ’s arguments that: (1) the claims were not “prudentially ripe” because the harms are too contingent, and the DOJ and DHS have not determined the terms of the Order, (2) there was no loss of funds or cognizable harm because neither Santa Clara nor San Francisco had been named “sanctuary jurisdictions” pursuant to the Order, (3) the Order did not change existing law, as it would be enforced only “to the extent consistent with the law,” (4) it was restricted to three DOJ and DHS “grants that are already conditioned on compliance with § 1373,” and (5) it was therefore “merely an exercise of the President’s ‘bully pulpit’” that “highlight[ed] a changed approach to immigration enforcement.” Judge Orrick wrote: (1) “[t]here is no doubt that Section 9(a), as written, changes the law” and “purport[s] to give the Secretary or Attorney General the unilateral authority to alter [§ 1373],” a power reserved to Congress, and (2) standing is established “by demonstrating a well-founded fear of enforcement and a threatened injury that is ‘sufficiently real and imminent,’” and Santa Clara and San Francisco, are likely to be designated “sanctuary jurisdictions” under the Order given their policies, and withdrawing review would result in hardship that is more than financial loss. Further, Judge Orrick found a high likelihood of success on the merits of the constitutional claims, that there was impending irreparable harm based on budgetary uncertainty and constitutional injury, and that the balance of equities and public interest squarely tips in favor of the injunction. Finally, Judge Orrick found “a nationwide injunction is appropriate” because the constitutional violations had nationwide consequences.

The Chelsea and Lawrence LawsuitsOn February 8, 2017, Chelsea and Lawrence filed their complaint, challenging the Order on the previously discussed constitutional and declaratory relief grounds. Their motivation in filing suit underscores what is at stake for many sanctuary cities nationwide.[10] Simply put: “[i]t is impossible [for a sanctuary city] to create a budget when it is unclear what effect the Executive Order will have on its funding.” The crippling consequence is especially stark in communities like Chelsea and Lawrence. Chelsea is a working-class city where over 60% of its residents identify as Hispanic or Latino, over 40% are foreign-born, and over 20% live below the poverty level with a per capita income of $21,722.00. Chelsea counts on the federal government for about 10%, or $14 million, of its $170 million annual budget. Similarly, Lawrence is a working class city where over 70% of its residents identify as Hispanic or Latino, over 35% are foreign-born, and over 25% live below the poverty level with a per capita income of $17,167.00. Lawrence counts on the federal government for over 15%, or $38 million, of its $245 million annual budget. The Order threatened large portions of these impoverished cities’ budgets because of policies they deemed necessary for their communities’ public safety. In early May, while the DOJ’s motion to dismiss was pending, Judge Orrick’s national injunction issued; the DOJ and Chelsea and Lawrence subsequently agreed to a stay, pending resolution of the injunction.

Where We Are NowOn May 22, 2017, Attorney General Sessions issued a “Memorandum on the Implementation of the Executive Order” (“Memo”), codifying arguments advanced by the DOJ at the preliminary injunction hearing. Relying on the Memo, in late May, the DOJ moved for reconsideration of the nationwide injunction in the San Francisco and Santa Clara cases. The DOJ then filed motions to dismiss on procedural and substantive grounds in the San Francisco, Santa Clara, Richmond, and Seattle cases. On July 20, 2017, Judge Orrick issued an order denying the motions for reconsideration and motions to dismiss in the Santa Clara and San Francisco cases, finding that the Memo did not impact his prior conclusion regarding standing, ripeness, and likelihood of success on the merits. Additionally, he concluded that San Francisco had stated a claim for declaratory relief.

ConclusionWhile a nationwide preliminary injunction has been entered, many questions remain. The interplay between federal and state law regarding ICE detainers remains unclear; the constitutionality of § 1373 is still undecided; and future federal actions against sanctuary cities remain real possibilities. The Memo, purporting to narrow the definition of “sanctuary jurisdictions” and limit the sources of federal funding that are threatened by the Order, is arguably inconsistent with the terms of the Order itself, does not have the force of law, and is subject to change. It remains to be seen to what extent local policy makers are able to prioritize public safety over federal immigration enforcement without jeopardizing critical federal funding.

REPRINTED FROM BOSTON BAR JOURNAL Summer 2017 Vol. 61 #3https://bostonbarjournal.com/2017/08/09/sanctuary-cities-distinguishing-rhetoric-from-reality/Inez Friedman-Boyce is a partner, Jennifer Luz is counsel, and Sarah Fischer, Alexandra Lu, and Louis Lobel are associates at Goodwin Procter LLP. Ms. Friedman-Boyce is a past co-chair of the BBA Class Actions Committee and the current co-chair of the Lawyers’ Committee for Civil Rights and Economic Justice. Along with the Lawyers’ Committee, they are all counsel for the Cities of Chelsea and Lawrence in litigation pending in the U.S. District Court for the District of Massachusetts challenging President Trump’s sanctuary city executive order.

In 2015, 1.53 million people languished in US prisons and 728,000 in jails, or 673 per 100,000 (BJS 2016a, Table 1). Only North Korea, among major nations, may surpass the US in this regard.

Higher incarceration rates and longer sentences, along with the “war on drugs,” have imposed great costs on taxpayers, as well as on inmates, their families, and their communities. Yet even though the 59% per-capita rise in incarceration between 1990 and 2010 accompanied a 42% drop in FBI-tracked “index crimes,” researchers agree that putting more people behind bars added modestly, at most, to the fall in crime.

As for the implications for the impacts of mass incarceration on crime: Longer sentences do not clearly deter crime. THE IMPACTS OF INCARCERATION ON CRIME at page 130.

That is why states are finding new ways to get smart on crime and, in the process, changing how America views crime and punishment. After decades of rising prison populations, reforms in 33 states have helped cut the national incarceration rate by 13 percent since 2007.

Every day I sit in drug courts in Milwaukee County and hear prosecutors tell courts that some particular drug case is serious is because “it is well established that drugs and violence go together.” By drug crime, let me also be clear I am talking about illegal drugs, not the more common legal drug, alcohol (which I guess does not cause violence?). I always wonder about the implication of that statement. Is the prosecutor saying alcohol does not cause violence or that only illegal drugs cause violence?

Like the need to revoke a new felon’s right to participate in democracy by voting (this is the sentencing practice known as disenfranchisement which has its origins in America’s slave codes; meaning, every time a judge disenfranchises a newly convicted felon they are implicitly accepting a practice from America’s slave codes), I have also wondered if there was evidence that drugs and violence go together. This is an important question since in fiscal 2016, in the Eastern District of Wisconsin (the federal district which includes Milwaukee, Waukesha, Ozaukee, Racine, Kenosha Counties), drug cases (33.2%) were the largest number of cases being dealt with in the criminal system. Incidentally, the second largest number of cases dealt with were firearm cases (27.9%). By the way, nationally those numbers are different: drug cases make up 31.6% of the cases while firearm cases make up only 10.8% of the cases.

The Drug Enforcement Administration (DEA) asserts that drug trafficking poses serious threats due to the violence that accompanies it, and the DEA therefore opposed releasing nonviolent drug offenders under the Smarter Sentencing Act since releasing 1 percent of federal prisoners would lead to over 32,000 more murders, rapes and other violent crimes.

Despite this position by the DEA, 6,000 federal inmates have been released early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades, according to U.S. officials. The early releases follow action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — that reduced the potential punishment for future drug offenders last year and then made that change retroactive. Importantly, being released from prison does not usually mean getting out of the prison system. About two thirds of the inmates are first moved to lower-security prisons, then to halfway houses before home-confinement and, finally, probation. This action by the U.S. Sentencing Commission is separate from an effort by President Obama to grant clemency to certain nonviolent drug offenders, an initiative that has resulted in the early release of 89 inmates.

So with all these prisoners being released, there should be an up-swing in violence since drugs and crime are linked, right? In trying to answer that question I read an interesting paper by Professor Shima Baradaran Baughman entitled Drugs and Violence 88 USC Law Review 227 (2015).

Professor Baughman identifies the pervasiveness of the premise of drugs and violence and debunks it: “Most drug offenders commit nonviolent offenses and at low rates. Though certainly drug addicts commit more crimes, they commit them at low rates, and the connection between drugs and violent crimes is complex and not conclusive…. At best, the connection between drugs and violence is uncertain. Indeed, studies have pointed out that forces of violence are not caused by drugs but may come from economic hardship, poor intellectual capacity, an aggressive temperament, or other personality disorders. …This unsupported connection leads to a loss of important constitutional rights, trumped up mandatory sentences, and disproportionate increases in incarceration for non-violent defendants who pose little threat to public safety. The entire framework of federal and state drug statutes must be reworked to remove the many presumptions that drugs cause violence.” Professor Baughman has said.

Professor Baughman demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary. In particular, the presumed connection between drugs and violence has reduced constitutional protections, misled government resources, and resulted in the unnecessary incarceration of a large proportion of non-violent Americans.

In short, if drugs do not cause violence then America needs to rethink its entire approach to drug policy.